The Mineral County Board of County Commissioners will consider, and may adopt the following Ordinance at a Regular meeting of the Board, scheduled to take place on Wednesday, June 21, 2023 at 9:30 am.
THE STATE OF COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
AND MINERAL COUNTY, COLORADO
INTERGOVERNMENTAL AGREEMENT REGARDING MINERAL COUNY ORDINANCE NO. 23-01
ORDINANCE NO. 23-01
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY, COLORADO FOR THE REGULATION OF LAND USE, DEVELOPMENT AND ACTIVITIES UPON CERTAIN PROPERTY WITHIN UNINCORPORATED MINERAL COUNTY CONTAINING MINE WASTE SOURCE AREAS WHERE RESIDUAL MINE WASTES AND/OR ENGINEERED COMPONENTS EXIST, SPECIFICALLY INCLUDING
THE NELSON TUNNEL/COMMODORE WASTE ROCK SUPERFUND SITE
WHEREAS, Mineral County (the “County”) has jurisdiction over mine waste source areas, as defined herein, where residual mine wastes and remediation, including engineered components exist, and the Board of County Commissioners adopts this Ordinance to control and regulate land use at such mine waste source areas, specifically including, but not limited to, the Nelson Tunnel/Commodore Waste Rock Superfund site (“Site”), pursuant to authority granted in C.R.S. § 29-20-104 and C.R.S. § 30-11-101, et seq.; and
WHEREAS, the United States Environmental Protection Agency (“EPA”) and the Colorado Department of Public Health and Environment (“CDPHE”) have and will conduct Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) response actions at portions of the Nelson Tunnel/Commodore Waste Rock Superfund Site (collectively referred to as “CERCLA response actions”), in Mineral County; and
WHEREAS, the mine waste source areas within and outside of the Site are listed in Attachment A and depicted in Attachment B, as may be modified from time to time and maintained within the Office of the Mineral County Clerk and Recorder for public viewing; and
WHEREAS, although the CERCLA response actions are conducted to protect human health and the environment in accordance with the National Contingency Plan (40 C.F.R. Part 300), residual mine waste will remain at the mine waste source areas within and outside of the Site. Contact with residual mine waste could result in unacceptable human exposure to lead and arsenic; and
WHEREAS, the CERCLA response actions include engineered components such as waste rock covers and rehabilitated mine portals that will not function as intended if disturbed; and
WHEREAS, the Colorado Environmental Covenants Law, C.R.S. § 25-15-320(2), requires environmental covenants for environmental remediation projects related to remedial decisions made after July 1, 2001, that result in residual contamination levels determined safe for one or more specific uses, but not all uses, or where engineered features or structures are incorporated requiring monitoring, maintenance or operation or that will not function as intended if disturbed. Environmental covenants are only required for remedial decisions made pursuant to the: Resource Conservation and Recovery Act, 42 U.S.C. §§ 6921-6939e, 6972, 6973 and 6991-6991i; CERCLA, 42 U.S.C. § 9601, et seq.; Uranium Mill Tailings Radiation Control Act of 1978, 42 U.S.C. § 7901 et seq.; Colorado Radiation Act, C.R.S. §§ 25-11-101 to 114 and 301-205; Colorado Hazardous Waste Act, C.R.S. §§ 25-15-310 to 328; and Colorado Solid Waste Disposal Sites and Facilities Act, C.R.S. § 30-20-100.5 et seq.; and
WHEREAS, Site response actions are selected pursuant to CERCLA and after July 1, 2001, thus triggering the requirement for environmental covenants at Site mine waste source areas; and
WHEREAS, C.R.S. § 25-15-320(3)(b) authorizes CDPHE to waive the requirement for an environmental covenant for parcels of land where the owner does not grant an environmental covenant under C.R.S. § 25-15-320, and where the County, City, or municipality having jurisdiction over the affected land has enacted an ordinance or resolution imposing the relevant environmental use restrictions, and has entered into an intergovernmental agreement with CDPHE; and
WHEREAS, the County finds that this Ordinance is necessary to protect human health and the environment and to maintain remediation measures, including engineered components at the subject CERCLA mine waste source areas.
BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY, COLORADO as follows:
Section 1. Title.
This Ordinance shall be known and referred to as the Nelson Tunnel Superfund Land Use, Development, Activities Regulations.
Section 2. Authority to Promulgate Ordinance.
The Board of County Commissioners has authority to regulate land use, development and activities in hazardous areas pursuant to C.R.S. § 29-20-104, and to adopt and enforce ordinances and resolutions regarding health, safety and welfare pursuant to C.R.S. § 30-11-101, et seq.
Section 3. Purpose.
The Board of County Commissioners of Mineral County, Colorado, finds and declares that residual contamination at mine waste source areas may pose a threat to the health, safety, and welfare, of the citizens of Mineral County, Colorado. The Board of County Commissioners also finds and declares that the land use restrictions are necessary to protect remediation measures, including engineered components at mine waste source areas within and outside of the Site.
Section 4. Scope of Ordinance.
A. This Ordinance shall apply to mine waste source areas listed in Attachment A and depicted in Attachment B, as may be modified from time to time and maintained within the Office of Mineral County Clerk and Recorder for public viewing. Mine waste source areas are hereby defined as portions of real property upon which mine waste or contamination, or any engineered components designed to contain, treat, divert, avoid or otherwise address any aspect of such mine waste or contamination, are located, either partially or wholly.
B. This Ordinance is intended to create an additional permitting process applicable to mine waste source areas, in addition to the process required by the Mineral County and Land Use Regulations. Nothing herein shall be construed as limiting the scope or the authority of the Mineral County Zoning and Land Use Regulations.
C. The determination as to whether a specific property listed in Attachment A and depicted in Attachment B is subject to this Ordinance shall be made by CDPHE and the County. Any property owner or prospective purchaser may at any time request CDPHE and the County make a formal determination whether a property is in whole or in part a mine waste source area, or whether the property contains an engineered structure or feature that requires monitoring, maintenance, or operation or that will not function as intended if it is disturbed, and thus subject to this Ordinance. Requests shall be made in writing and provide at minimum a survey plat as well as corresponding survey staking of the subject property. CDPHE and the County shall make such a determination within a reasonable period of time. Said timeframe may be impacted by such factors as weather, snowpack, and general access. The determination regarding inclusion or exclusion of a specific property is subject to change for reasons including but not limited to changes on the ground, current or proposed remediation measures, or the discovery or evaluation of additional information. To assist in the determination process, CDPHE and the County may request that a Phase 1 and/or Phase 2 environmental site assessment be conducted on the subject property. If CDPHE and the County determine that the subject property is not within a mine waste source area, and the property does not contain an engineered structure or feature that requires monitoring, maintenance, or operation or that will not function as intended if it is disturbed, then the ordinance will not apply to the property and CDPHE will have no further involvement with regard to the County’s Permit process for future development proposals. Any determination of non-applicability shall be provided in writing to the applicant.
Section 5. Regulation of Land Use Activities.
A. Regulation of Excavation Activities in Mine Waste Source Areas with Residual Contamination or Engineered Structures or Features
(1)
No excavation, drilling, grading, digging, tilling, or any other soil-disturbing activity is allowed within any mine waste source areas containing residual contamination at levels that have been determined to be safe for one or more specific uses, but not all uses, including mine tailings, waste-rock impoundments, or engineered structures or features that require monitoring, maintenance, or operation or that will not function as intended if it is disturbed, except as authorized in a remedial decision document or with the prior written authorization of CDPHE as set forth in this Section 5.
B. Mine Waste Source Area Permit – CDPHE Consult Required
(1)
Any application to the County for any building permit, zoning, subdivision, planned unit development, use by right, special review use, or any development activity (“Permit application”) that will result in any soil-disturbing activity within the boundary of a mine waste source area shall be preceded by an application for consultation with CDPHE.
(2)
CDPHE consultation prior to a County Permit application may be requested by an applicant. At a minimum, the consultation application must include:
(a)
A general site plan showing the major details of the proposed development, consisting of the location of building and structures, off-street parking and loading areas, service and refuse areas, means of ingress and egress, major landscaping and screening proposals, and signs and pedestrian areas, or a relevant summary of the development activity proposed to be conducted within the boundaries of the mine waste source area;
(b)
A time schedule for the proposed development;
(c)
A plan for maintaining the integrity of any engineered component of the remedial action; and
(d)
Any other information the applicant believes will support his or her request.
(3) Prior to proceeding to the CDPHE consultation and County Permit process, any applicant may request a determination as to whether the subject property is within a mine waste source area pursuant to subsection 4(C). If CDPHE and the County determine that the subject property is not within a mine waste source area, and the property does not contain an engineered structure or feature that requires monitoring, maintenance, or operation or that will not function as intended if it is disturbed, then the ordinance will not apply to the property and CDPHE will have no further involvement with regard to the County’s Permit process.
(4) The following activities shall be exempt from the County Permit and CDPHE authorization processes set forth herein:
(a)
Operations, inspection and maintenance activities undertaken at a mine waste source area by EPA, CDPHE or their duly authorized contractors;
(b)
Operations, inspection and maintenance activities undertaken at a mine waste source area by the County or their designee(s). This includes any activities undertaken by the County or their designee in connection with the County’s efforts to stabilize and repair any historic structure; and
(c)
Any other activity exempted from the provision of this Ordinance pursuant to the joint written consent of the County and a duly authorized representative of CDPHE.
C. CDPHE Consultation Review and Results
(1) Within a reasonable time following written submittal of a consultation application to the CDPHE representative, along with the minimum required application information and any additional information requested, the CDPHE representative shall prepare a letter to the County setting forth the position of CDPHE as to the permit being sought. The letter shall include either: 1) a denial of authorization to proceed; 2) authorization to proceed with the permit as described in the application; 3) authorization with conditions; or 4) a determination by the CDPHE to defer its final position and participate in the County Permit process, in which case CDPHE will render its final position at the conclusion of the County Permit process.
D. County Permit Application
(1) Following receipt of CDPHE’s written authorization, authorization with conditions, or deferral and request to participate jointly in the County Permit process, the County shall proceed with processing the application pursuant to the Mineral County Zoning and Land Use Regulations. In the event that CDPHE is participating in the County Permit process prior to issuing authorization, said authorization or denial by the CDPHE may be determined at any point during the County Permit process. Final Authorization by CDPHE and final issuance of a County Permit shall authorize CDPHE to review and work with the County and Permit recipient to assure no activity disturbs the engineered features of the remediated areas of the property unless authorized in a remedial decision document.
E. No Development without Permit
(1) No application for any building permit, zoning, subdivision, planned unit development, use by right, special review use, or any other development activity that will result in any soil-disturbing activity within the boundaries of a mine waste source area shall be allowed until such time as the property owner or applicant has secured CDPHE’s written authorization and a County Permit, and has fully complied with any conditions set forth in the Permit. The issuance of CDPHE’s written authorization shall be a condition precedent to any soil-disturbing activity within the boundaries of a mine waste source area.
Section 6. Violations and Penalties.
A. This Ordinance may be enforced pursuant to the provisions of the Mineral County Land Use Code and C.R.S. §§ 30-28-124, 124.5, 209 and 209.5. Violation of any provision of this Ordinance, or a Permit issued pursuant to Section 5, shall constitute a violation of the Mineral County Land Use Code which shall carry such penalties and entitle the County to seek such remedies as are provided by the Mineral County Land Use Code or state law.
B. Any person who violates the Ordinance or a Permit Section shall also be guilty of a class 2 petty offense, and, upon conviction thereof, shall be punished by a fine of not more than one thousand ($1,000) dollars for each separate violation.
C. The penalty assessment procedure provided in C.R.S. § 16-2-201 shall be followed for any violation of this Ordinance. Any person found in violation pursuant to subsection (A) of this Section 6 shall be assessed a penalty by the apprehending peace officer or by the County Code Enforcement Officer. The penalty assessment shall be a summons and complaint which:
(1) identifies the alleged offender by name, address and social security number (if available);
(2) specifies the offense with which the person is charged;
(3) states both the applicable maximum one thousand ($1,000) fine and maximum six (6) months jail sentence (if convicted and sentenced by the Court) and the violator’s option to instead voluntarily pay a fine of five hundred ($500) dollars payable to the County Treasurer; and
(4) states the requirement that the alleged offender either pay the optional five hundred ($500) fine to the County Treasurer in person or by mail within fourteen (14) days of the issuance of the penalty assessment or else appear to answer the charge before the County Court at 9:00 a.m. on the date of its next regular session at the Mineral County Courthouse.
Any person who chooses to acknowledge his or her guilt may, within fourteen (14) days of the date of issuance of the penalty assessment, voluntarily pay a fine of five hundred ($500) to the Mineral County Treasurer either in person or by mail at the address as shown on the penalty assessment. Any such payment shall be accompanied by a copy of the penalty assessment signed by said person acknowledging his or her guilt. Payment of the foregoing fine shall relieve the person receiving the penalty assessment of any further obligation to appear in the County Court to answer the offense charged in the penalty assessment.
D. When imposing a fine under this Ordinance, the Court shall separately state, as a part of the total fine, the surcharge specified in C.R.S. § 24-4.2-104(1). The defendant shall also pay court costs and docket fees.
E. Pursuant to C.R.S. § 25-15-322, this Ordinance, and the Intergovernmental Agreement referenced herein, whenever CDPHE and/or the County finds that any person is or has been in violation of any requirement of this Ordinance or a Permit as it relates specifically to property or actions at mine source areas, CDPHE and/or the County may bring suit in district court for injunctive relief, enforcement of this Ordinance, or a Permit, and recovery of attorneys’ fees and costs for any such enforcement action pursuant to C.R.S. § 25-15-322. CDPHE may also issue an administrative order identifying the factual and legal elements of such violation and requiring the person to comply with any such requirements remedying the violation.
Section 7. Prosecution.
All prosecutions pursuant to Section 6(A)-(D), shall be by the 12th Judicial District, District Attorney according to the Colorado County Court Rules of Criminal Procedure in the Mineral County Court. The simplified county court procedures set forth in part 1 of article 2 of title 16, C.R.S., shall be applicable to the prosecution of violations of this Ordinance.
Section 8. Severability.
If a Court of competent jurisdiction shall hold any part of this Ordinance void or unconstitutional, such part shall be deemed severable, and the invalidity thereof shall not affect the remaining provisions of the Ordinance.
Section 9. Disposition of Fines, Fees, and Forfeitures.
All fines and forfeitures obtained through enforcement actions initiated under Section 6 for violations of the provisions of this Ordinance shall be paid into the treasury of Mineral County upon payment of said fines and forfeitures.
Section 10. Effective Date.
This Ordinance shall be in full force and effect thirty days after publication of the Notice of Adoption in the Mineral County Miner and Pagosa Springs Sun.
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INTRODUCED, FIRST READING AND ORDERED PUBLISHED IN FULL on this ________ of ____________________, 2023.
ADOPTED ON SECOND READING AND ORDERED PUBLISHED IN FULL this ________ of ____________________, 2023.:
Jesse Albright, Chairman ATTEST
Ramona Weber
Scott Lamb
PROPERTIES SUBJECT TO ORDINANCE 23-01
EXHIBIT A TO:
MINERAL COUNTY ORDINANCE 23-01 NELSON TUNNEL SUPERFUND LAND USE, DEVELOPMENT, ACTIVITES REGULATIONS
CLAIM NAME MINERAL SURVEY NUMBER COUNTY PARCEL NUMBER PATENT NUMBER OWNER
Sunnyside 7347 4763 2310 0003 24531 Commodore Mining Company
Corona 7389 4763 2310 0003 23207 Commodore Mining Company
Napoleon 7389 4763 2310 0003 23207 Commodore Mining Company
Transfer 7389 4763 2310 0003 23207 Commodore Mining Company
Unknown 7389 4763 2310 0003 23207 Commodore Mining Company
New York 7406 4763 2310 0003 24151 Commodore Mining Company*
Commodore 7420 4763 2310 0003 25995 Commodore Mining Company
Maid of Erin 7440 4763 2310 0003 25512 Commodore Mining Company
Legal Tender 7440 4763 2310 0003 25512 Commodore Mining Company
Copper 7539 4763 2310 0003 23289 Commodore Mining Company
Rio Grande No. 2 8208 4763 2310 0003 26401 Commodore Mining Company*
Archimedes 8345 4763 2310 0003 24463 Commodore Mining Company
Fraction 12638 4763 2310 0003 30871 Commodore Mining Company
Manhattan 7460 4763 2520 0002 23345 Commodore Mining Company
Bachelor 7539 4763 2520 0002 23289 Commodore Mining Company
Spar 7539 4763 2520 0002 23289 Commodore Mining Company
N.Y.C. Lode 8240A 4763 2520 0002 24277 Commodore Mining Company
N.Y.C. Millsite 8240B 4763 2520 0002 24277 Commodore Mining Company
Trail 9803 4763 2520 0002 27468 Commodore Mining Company
Tram 11970 4763 2520 0002 30638 Commodore Mining Company
Tariffa 11970 4763 2520 0002 30638 Commodore Mining Company
Amethyst 7333 4763 1300 0006 22063 Del Monte Mining Company
Hidden Treasure 7462 4763 1300 0006 25944 Del Monte Mining Company
Undine 8265 4763 1300 0006 25972 Del Monte Mining Company
Hillside 9241 4763 1300 0006 25918 Del Monte Mining Company
Albion 9375 4763 1300 0006 26627 Del Monte Mining Company
Snowstorm 9375 4763 1300 0006 26627 Del Monte Mining Company
Smuggler 9375 4763 1300 0006 26627 Del Monte Mining Company
Del Monte 7356 4763 2310 0014 23885 Del Monte Mining Company
Aspen 7356 4763 2310 0014 23885 Del Monte Mining Company
White 7370 4763 2310 0014 24461 Del Monte Mining Company
Equitable 7370 4763 2310 0014 24461 Del Monte Mining Company
Storm 7389 4763 2310 0014 23207 Del Monte Mining Company
Lottie 7467 4763 2310 0014 22487 Del Monte Mining Company
Matilda 7468 4763 2310 0014 23288 Del Monte Mining Company
German National #2 8016 4763 2310 0014 25766 Del Monte Mining Company
Mustang 8054 4763 2310 0014 34579 Del Monte Mining Company*
St Charles 8261 4763 2310 0014 26449 Del Monte Mining Company
S.C.F. 8336 4763 2310 0014 26426 Del Monte Mining Company
Ochre 8375 4763 2310 0014 28356 Del Monte Mining Company
Senora 7672 4763 2410 0019 24043 Del Monte Mining Company
Tunnel Annex 9791A 4763 2520 0003 27346 Del Monte Mining Company
Annex Millsite 9791B 4763 2520 0003 27346 Del Monte Mining Company
Windsor 7478 4763 1300 0008/4763 1300 0009 26806 Kanawha Mining Company*
Metropole 7478 4763 1300 0008/4763 1300 0009 26806 Kanawha Mining Company*
Governor 7478 4763 1300 0008/4763 1300 0009 26806 Kanawha Mining Company*
Robinson 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company*
Frazee 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company*
Major 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company*
Taylor 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company*
Fraction 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company*
American Girl 7484 4763 1300 0008/4763 1300 0009 26133 Kanawha Mining Company
Little Kanawha 11922 4763 1300 0008/4763 1300 0009 29394 Kanawha Mining Company
Big Kanawha 11922 4763 1300 0008/4763 1300 0009 29394 Kanawha Mining Company
Last Whack 17091 4763 1300 0008/4763 1300 0009 41937 Kanawha Mining Company
Morpheus 17091 4763 1300 0008/4763 1300 0009 41937 Kanawha Mining Company
Weaver 18751 4763 1300 0008/4763 1300 0009 167990 Kanawha Mining Company
Kanawha #1 20861A 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Kanawha #2 20861A 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Kanawha #4 20861A 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Kanawha #5 20861A 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Kanawha #6 20861A 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Big Ben Millsite 20861B 4763 1300 0008/4763 1300 0009 05-72-0006 Kanawha Mining Company
Sybil 20864 4763 1300 0008/4763 1300 0009 05-72-0007 Kanawha Mining Company*
Texas Girl 20865 4763 1300 0008/4763 1300 0009 05-72-0008 Kanawha Mining Company*
Equinox 7433 1463 1410 0017/4763 1410 0053 26425 Martha Antoinette Johnson/Marianne Viatora Patrick
Winchester 7423 4763 1410 0060 25917 Creede Bachelor Enterprises
Hard Cash 7428 4763 1410 0060 24335 Creede Bachelor Enterprises
Baltimore 7428 4763 1410 0060 24335 Creede Bachelor Enterprises
Dead Pine 7446 4763 1410 0060 27939 Creede Bachelor Enterprises
Domingo 7428 4763 1410 0062 24335 Creede Bachelor Enterprises
Legal Tender 8242 4763 1410 0062 28207 Creede Bachelor Enterprises
*Other owners in addition to the stated Mining Company
No. 6584 published in the Mineral County Miner, Thursday, June 8, 2023.
